This was a Costs Decision arising from an Application by the Defendants to dismiss the Action pursuant to Rule 4.31 and 4.33 under which some of the Third Party Defendants also applied to dismiss the Claim against them (the “Underlying Application”). The Defendants were successful at the Underlying Application and the Court directed that: (1) the Plaintiff would pay the Defendants’ Costs; (2) the Plaintiff would pay the Costs of the Third Parties who attended and made representations (the “Third Parties Entitled to Costs”); (3) those who did not attend and make representations would not have their Costs; (4) and that Costs would be under Schedule C (together the “Underlying Decision”).

The Plaintiff applied, pursuant to Rule 9.12, to have the Court correct the Order corresponding to the Decision (the “Underlying Application Order”) and requested that the Court address a referral by the Assessment Officer under Rule 10.39.

The Court reviewed Rule 9.12 and, among other things, noted that it is known as the “slip rule” which is designed to allow a Court to correct an error in a judgment that is “plain and manifest.”  The Plaintiff asserted that the Order should be amended as it erroneously gave the Third Parties Entitled to Costs, costs of the Action not just costs of the Underlying Application.

The Court determined that the Underlying Application Order contained no mistake, no irregularity, and reflected the Court’s intention as set out in its Decision. The Court additionally noted that the parties approved the form of Order more than a year ago.

The Court set out Rule 10.39(1) as the authority pursuant to which the Assessment Officer requested direction as to which Column under Schedule C was to be used to assess the Costs owed to each of the Third Parties Entitled to Costs.

The Court noted that that: (1) the appropriate Column in Schedule “C” is determined by the amount claimed in the Plaintiff’s Statement of Claim; (2) the amount claimed by the Plaintiff in their pleadings and the amount of the Plaintiff’s recovery are the only numbers that are material; and (3) the Plaintiff should, in fairness, pay the costs of Third Parties where third party proceedings follow naturally and inevitably upon the institution of an Action, in the sense that the Defendant had no real alternative but to join the Third Party.

The Court noted that there was no settlement, the amount claimed by the Plaintiff was sufficient to resolve the disagreement over which column of Schedule “C” applied, and that the Defendants’ decision to bring the Third Parties into the Action was inevitable upon the initiation of the Action.

The Court determined that the Third Parties Entitled to Costs would have their Costs awarded at Column 5 rates (on the assumption that this matched the amount claimed in the Statement of Claim), which was subject to the Assessment Officer’s approval of their individual Costs claims.

The Court additionally noted that the Third Parties Entitled to Costs submitted that they were entitled to extra half days under item 8(1)(b) of Schedule C with respect to the Underlying Application. The Court set that the Third Parties Entitled to Costs were to submit their Bills of Costs and it would be up to the Assessment Officer to decide what was appropriate under their powers in Rules 10.35-10.43.

The Court noted that the Plaintiff made an Application (in the alternative) to, in essence, clarify the Order under Rule 9.14. The Court reviewed Rule 9.14 and set out that it: (1) granted the Court the power to make a further Order when it is needed to provide the litigants with the relief to which they are entitled, and (2) that it is not to be used when a further Order would amount to a variation of the original Order.

The Court, accordingly, determined that it was not prepared to make any Order which would, in effect, vary the Underlying Decision. The Court further clarified that that the Defendants and the Third Parties Entitled to Costs would have their Costs of the Action payable by the Plaintiff, under Schedule C, which also included Costs of the Underlying Application.